RE-Solution Services Terms and Conditions
Unless the context shall otherwise require the following words and expressions shall have the following meanings:
“Agreement” means this agreement including the Schedules and each Order;
“Acceptance Notice” means a written notice issued by RE-Solution confirming acceptance of the RE-Solution Provided Product;
“Access Code” means any access number, password or code that may be allocated from time to time to the Customer (including its employees and authorised agents and subcontractors) by RE-Solution in order to allow the Customer and its employees and authorised agents and sub-contractors to have access to the System;
“RE-Solution Provided Product” means equipment including any software embedded on such equipment, (if any) sold to the Customer under any Order pursuant to the terms of this Agreement;
“Charges” means the charges payable by the Customer to RE-Solution for the services pursuant to clause 4;
“Commencement Date” means 1 xxx 201x;
“Confidential Information” means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a Party to the other, or learnt or accessed by, or to which the other Party is exposed as a result of entering into this Agreement or any Order and includes, without limitation, any information and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property Rights or other proprietary information or material of a Party or dealings under this Agreement or any Order;
“Customer Equipment” means equipment (including any Software embedded on such equipment), used by the Customer in the Infrastructure;
“Data” means all data processed by RE-Solution or provided to RE-Solution for processing as part of the Services;
“Defect” means any fault in the RE-Solution Provided Product as defined by the Equipment Manufacturer;
“Equipment Manufacturer” means the original manufacturer of the RE-Solution Provided Product;
“Initial Period” means the period of [thirty six (36)] months from the Commencement Date;
“Infrastructure” means the Customer’s hardware and software infrastructure as set out in an Order as the same may be modified added to or replaced during the term of this Agreement by agreement between the Parties;
“Intellectual Property Rights” means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi-conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
“Managed Services” means the managed services to be provided by RE-Solution as set out in an Order;
“Order” means an order in the format set out in the Schedule issued by the Customer and accepted by RE-Solution for the provision of certain services to the Customer;
“Parties” means together RE-Solution and the Customer;
“Personal Data” has the meaning ascribed to it in the Data Protection Act 1998;
“Representative” means the person nominated by each Party in accordance with clause 16;
“Renewal Period” means a period of twelve (12) months as specified in clause 3.2;
“Services” means together the (i) Professional Services, (ii) Support Services, (iii) Managed Services and (iv) the supply of RE-Solution Provided Product which may be provided by RE-Solution under this Agreement;
“Service Levels” means the levels of performance to which the Services are to be provided to the Customer by RE-Solution as set out in an Order;
“Services Term” means the period during which the Services will be performed as set out in an Order;
“Services Term Renewal Period” means a period of twelve (12) months as specified in clause 2.4;
“Site” means the premises set out in the Order where the Services will be provided and/or the System installed;
“Staff” means those individuals employed by RE-Solution and listed in the Order;
“Support Services” means the support services to be provided by RE-Solution as set out in an Order;
“System” means the hardware and software covered by the Services and all components thereof specified in an Order as the same may be modified added to or replaced during the term of this Agreement by agreement between the Parties; and
“Warranty Period” means the period of warranty provided by the Equipment Manufacturer to RE-Solution.
2.1 During the term of this Agreement, the Customer may place Orders for Services and RE-Solution shall provide the Services in consideration for the payment of the Charges by the Customer to RE-Solution.
2.2 RE-Solution does not acknowledge any implied right of cancellation and reserves the right to make such charge as it considers reasonable if (without prejudice to the foregoing) it expressly accepts that any Order may be cancelled in whole or in part. No cancellation will, under any circumstances, be accepted by RE-Solution where Services have been ordered to meet non-standard requirements of the Customer or if the RE-Solution Provided Product has already been despatched to the Customer.
2.3 By mutual agreement an Order may be suspended or changes may be made in the Services, quantity, design specification, place or methods of delivery and packaging. If any such change causes an increase or decrease in the price of the Services or in the time or expenses of performance of the Services an agreed, or (failing agreement) an equitable, adjustment will be made and RE-Solution will invoice or credit the Customer with the amount of such adjustment. In any event, changes shall not be binding on RE-Solution unless confirmed in writing by a Director of RE-Solution.
2.4 Each Order will specify the applicable Services Term. Unless otherwise expressly agreed in an Order, on the expiry of this applicable Services Term, the applicable Services shall be automatically extended for additional periods of twelve (12) months (each a Services Term Renewal Period) until either Party gives the other Party ninety (90) days’ notice of its intention to terminate the Order prior to the automatic extension.
3.1 This Agreement shall commence on the Commencement Date and shall (subject to the provisions for early termination set out in clauses 20 and 24.3) continue for the Initial Period.
3.2 On the expiry of the Initial Period, this Agreement shall be automatically extended for additional periods of twelve (12) months (each a Renewal Period) until terminated in accordance with clause 20.
4 CHARGES, INVOICING AND PAYMENT
4.1 The Customer will pay the charges specified in each Order.
4.2 Unless otherwise stated in an Order, the Customer shall pay RE-Solution’s invoices within 30 days of the date it is issued.
4.3 Interest will be charged on any sum overdue at the rate of 1% above the National Westminster Bank Base Rate from the due date until the date of payment.
4.4 In relation to the RE-Solution Provided Product, subject to clause 12, the Charges shall be Ex Works (INCOTERMS). Prices include EEC duty where appropriate but save as aforesaid are net of VAT, shipping charges (including postage and packing) and any other taxes, charges and duties by whom so ever imposed and such shipping charges, taxes, charges and duties if paid or incurred by RE-Solution shall be charged to and paid by the Customer.
4.5 In the case of partial deliveries of RE-Solution Provided Product, pro-rata payments shall become due on each delivery.
5 CHANGES TO THE SERVICES
5.1 The Parties shall from time to time meet to review the manner in which the Services are being provided by RE-Solution hereunder.
5.2 In the event that the Customer wishes to amend the Services relating to an Order already submitted, then it shall make a written submission to RE-Solution setting out its requirements. RE-Solution shall, as soon as reasonably practicable after receipt of the request, notify the Customer whether it accepts or rejects the proposed amendment and the effect on the Charges (if any). Any accepted change which varies the Services shall be set out in an Order.
6 ACCESS TO SITE
6.1 The Customer shall grant to RE-Solution and its Staff access to the Site and the Infrastructure as may reasonably be required by those Staff for the provision of the Services.
6.2 Any changes to the location of any Site or any reduction or increase in the number of Sites shall be dealt with in accordance with clause 5.2.
6.3 RE-Solution shall keep the System at all times under its care and control and will only grant Access Codes thereto to employees or sub-contractors of the Customer who have been nominated in writing by the Customer to RE-Solution.
7 SERVICE LEVELS
7.1 RE-Solution shall ensure that the Services are performed by Staff of RE-Solution possessing suitable skills and experience.
7.2 RE-Solution shall use all reasonable endeavours to provide the Services to the Customer in accordance with the Service Levels.
7.3 Where RE-Solution is required to make any interruptions to the Services for any repairs or maintenance, RE-Solution shall use all reasonable endeavours to provide the Customer with advance notice and schedule such repairs and maintenance in an attempt to minimise the impact on the Services.
8 DELIVERY AND INSTALLATION
8.1 RE-Solution shall use all reasonable endeavours to:
(a) Deliver the RE-Solution Provided Product to the Site in accordance with the delivery dates set out in the Order; and
(b) If specified in the Order, install the RE-Solution Provided Product in accordance with the installation schedule and dates set out in the Order.
8.2 Due to the fact that RE-Solution is reliant upon the Equipment Manufacturer to deliver the RE-Solution Provided Product, all dates are estimates only and RE-Solution shall have no liability in any circumstances for any failures to meet the delivery or installation dates.
8.3 Deliveries are conditional upon prompt receipt of delivery instructions and other necessary information from the Customer. Delivery dates are scheduled upon or after acceptance of an order in accordance (as far as is practicable) with the Customer’s requirements. Part deliveries are permitted.
8.4 Physical components that are shipped to the Site carry a delivery charge. RE-Solution will endeavour to keep these costs to a minimum but will invoice the delivery charges to the Customer at cost.
8.5 Mileage will be charged at one pence per mile rate, as detailed in the Order, for the distance to/from the office location that transacted the business to the Site. Costs associated with bringing Staff from other locations will not be reflected in the charge to the Customer and will be charged as if they were based at the office which transacted the business.
8.6 Agreed accommodation, transportation (other than car) and reasonable sundry expenses will be charged to the Customer.
9.1 On and from delivery, RE-Solution shall conduct its standard acceptance tests on the RE-Solution Provided Product with the assistance of Customer in accordance with and by the dates set out in the Order.
9.2 On Acceptance of the RE-Solution Provided Product, RE-Solution shall issue Customer with an Acceptance Notice.
10 INTEGRATION AND TRAINING
If specified in an Order, RE-Solution will integrate the RE-Solution Provided Product and provide training as specified in the Order.
11.1 RE-Solution warrants to the Customer that:
11.1.1 RE-Solution will provide the Services exercising reasonable care and skill and in accordance with the terms of this Agreement; and
11.1.2 RE-Solution has full right power and authority to provide the Services to the Customer in accordance with the terms of this Agreement;
11.2 Each Party warrants to the other Party that it has full right power and authority to enter into this Agreement.
11.3 During the Warranty Period, RE-Solution shall make the necessary arrangements with the Equipment Manufacturer to repair or replace any Defects in the RE-Solution Provided Product.
11.4 RE-Solution shall not be liable under this clause to the extent that any Defect is caused by (i) wear and tear, (ii) the Customer or a third party, (iii) use of the RE-Solution Provided Product in conjunction with any other equipment, software or services not supplied by RE-Solution or (iv) any unauthorised modification of the RE-Solution Provided Product.
11.5 The Customer must notify RE-Solution in writing within two (2) working days after delivery, of any damage to RE-Solution Provided Product in transit and RE-Solution will replace such damaged RE-Solution Provided Product free of charge. Should the Customer fail to comply with this notification requirement, RE-Solution shall not be required to replace any RE-Solution Provided Product damaged in transit and the Customer shall be obliged to pay for them.
11.6 The Customer shall comply with all applicable laws relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010. The Customer shall also use its best endeavours to comply with RE-Solution’s anti-bribery and anti-corruption policies as supplied by RE-Solution to the Customer from time to time. A copy of those policies is available upon request by the Customer.
11.7 The Customer shall immediately notify RE-Solution if, at any time, the Customer becomes aware of any fact, matter of circumstances that might cause it to breach clause 11.6, upon which RE-Solution shall be entitled to terminate this Agreement immediately by written notice to the Customer.
12 TITLE AND RISK
12.1 Title to and risk in the RE-Solution Provided Product (other than in any software which is retained by the Equipment Manufacturer or its licensors) shall pass to the Customer upon payment in full of the Charges.
12.2 Responsibility and risk in any of RE-Solution’s equipment or materials at the Site shall remain with RE-Solution at all times.
13 RETURN OF RE-SOLUTION PROVIDED PRODUCT
RE-Solution Provided Product incorrectly ordered (either as to type or as to quantity) by the Customer will not be accepted for return by RE-Solution unless prior approval to return has been given by RE-Solution. Such approval is at the sole discretion of RE-Solution and may be subject to a payment by the Customer of 30% of invoice value of RE-Solution Provided Product returned to cover RE-Solution’s administrative costs.
14 LIMITATION OF LIABILITY
14.1 Subject to clause 14.2, the liability of RE-Solution under this Agreement, whether for breach of contract or tort (including negligence), under statute or otherwise, in respect of each occurrence shall not exceed the Charges paid by the Customer for the relevant element of the Services under the relevant Order.
14.2 Neither Party excludes or limits liability to the other Party for:
14.2.1 Death or personal injury resulting from negligence;
14.2.2 Fraud; or
14.2.3 Any other liability which cannot be limited or excluded by law.
14.3 RE-Solution’s liability to the Customer in respect of any damage to the tangible property of the Customer resulting from the negligence of RE-Solution or its employee’s agents or sub-contractors shall be limited to £250,000.
14.4 Subject to clause 14.2, RE-Solution shall not be liable to the Customer in respect of any loss of profits or goodwill or any type of special, indirect or consequential loss (including loss of data, loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or RE-Solution had been advised of the possibility of the Customer incurring the same.
15 DESIGN ALTERATIONS
RE-Solution reserves the right to alter the design engineering configuration, material or specification of its RE-Solution Provided Product by giving reasonable notice to the Customer of such alteration or to upgrade or incorporate such alterations in the Services.
16.1 RE-Solution and the Customer shall each nominate a Representative who will be responsible for:
16.1.1 Organising all meetings; and
16.1.2 providing and/or allowing access to (subject to the provisions in respect of confidentiality set out in clause 16 below) all information and documentation to which RE-Solution or the Customer (as the case may be) and/or their agents sub-contractors or professional advisors are entitled to pursuant to this Agreement.
16.2 Each Party shall inform the other of any change in the identity of its Representative during the course of this Agreement.
17 INTELLECTUAL PROPERTY RIGHTS
17.1 The Parties hereby agree that all Intellectual Property Rights arising during the term of this Agreement relating to the Services provided by RE-Solution shall belong to RE-Solution and the Customer undertakes as necessary to assign or procure the assignment of all such Intellectual Property Rights without charge to RE-Solution.
17.2 RE-Solution shall indemnify and hold harmless the Customer against all damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the use by the Customer of any modifications, enhancements or alterations of the Infrastructure infringes any Intellectual Property Rights of the said third party. RE-Solution shall not be liable under this clause 17.2 to the extent the claim arises from (i) an authorised modification of the Infrastructure (ii) use of the Service in conjunction with other equipment, software or services not supplied by RE-Solution or (iii) infringements occasioned by work done by RE-Solution in accordance with directions or specifications given by the Customer or designs made by, or on behalf of, the Customer, including any part of the Services designed to the Customer’s specifications.
17.3 The Customer shall indemnify and hold harmless RE-Solution against all damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the use of the Infrastructure or System by RE-Solution pursuant to this Agreement infringes any Intellectual Property Right of the said third party.
17.4 The indemnity in clause 17.2 shall be subject to Customer:
17.4.1 Notifying RE-Solution promptly in writing of any allegation of infringement;
17.4.2 Making no admission relating to the infringement;
17.4.3 Allowing RE-Solution to conduct all negotiations and proceedings and give RE-Solution all reasonable assistance in doing so (RE-Solution will pay the Customer’s reasonable expenses for such assistance); and
17.4.4 Allowing RE-Solution to modify or replace the Services, or any item provided as part of the Services, so as to avoid the infringement, provided that the modification or replacement does not materially adversely affect the performance of the Services.
17.5 If the Service becomes, or RE-Solution believes it is likely to become, the subject of an allegation or claim for infringement of any Intellectual Property Rights as referred to in Clause 17.2. RE-Solution at its option and expense, may secure for the Customer a right of continued use or modify or replace the Services, as set forth in Clause 17.4.4, so that it is no longer infringing. If neither of those remedies is available to RE-Solution on reasonable terms, RE-Solution may so notify the Customer and terminate such infringing Services without penalty to either Party.
17.6 Without prejudice to the provisions of the applicable law, the indemnity and remedies in Clauses 17.2 to 17.5 are the exclusive remedies for claims of Intellectual Property Rights infringement.
18 USE OF THE SYSTEM BY RE-SOLUTION
RE-Solution shall be entitled without payment to the Customer to use the internet connection on the System for the provision of Services for its own benefit or to third parties provided that the provision of the Services to the Customer is not thereby adversely affected and subject always to the confidentiality obligations set out in clause 22 below.
19 DATA PROTECTION
Each Party shall comply with the relevant obligations of the Data Protection Act 1998. To the extent RE-Solution processes Personal Data on behalf of the Customer, RE-Solution shall:
19.1.1 Only process the Personal Data in accordance with the instructions of the Customer; and
19.1.2 Take appropriate technical and organizational measures against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to the Personal Data.
20.1 Without prejudice to any other specific rights of termination contained in this Agreement, this Agreement may be terminated:
20.1.1 by either Party giving not less than ninety (90) days’ notice in writing to the other Party, (such notice to expire at the end of the Initial Period or the end of any Renewal Period) as applicable;
20.1.2 by RE-Solution, immediately upon written notice, if the Customer fails to pay any of the Charges within 28 days of a written notice to the Customer requesting it to do so;
20.1.3 forthwith by either Party if the other Party commits a material breach of any term of this Agreement (other than one falling under clause 20.1.2 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty (30) days of a written request by the other Party to remedy the same; or
20.1.4 forthwith by either Party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver administrator or liquidator or similar officer is appointed in respect of all or any part of the business or assets of the other Party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other Party or for the making of an administration order (otherwise that for the purpose of an amalgamation or reconstruction).
21 EFFECT OF TERMINATION
21.1 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continuance in force on or after such termination including without limitation clauses 14, 17, 20, 21, 22, 23, 35 and 36.
21.2 Without limitation to the foregoing, RE-Solution shall agree with the Customer a plan for the orderly hand-over of the Services to the Customer (or its nominee) such that the Services can be carried on with the minimum of interruption and inconvenience to the Customer.
21.3 With effect from the date of termination of this Agreement (the “Termination Date”) and until such time as the plan for the hand-over of the Services pursuant to clause 21.2 above has been fully implemented in accordance with its terms, RE-Solution agrees to continue the provision of the Services to the Customer in accordance with the terms and conditions of this Agreement save that it shall be entitled to be paid for such Services and all other actions necessary to implement this clause 21 at its then prevailing time and material charges. Such charges shall be payable by the Customer within thirty (30) days of the Customer receiving an invoice therefore containing a break-down of the staff, charging rates and the materials and their costs incurred in connection with this clause.
21.4 If either Party fails to return any property of the other Parties under its care and control on or prior to the Termination Date the affected Party shall be entitled and is hereby licensed to enter the other Party’s premises and seize the same.
21.5 Upon the termination or expiry of this Agreement for whatever reasons all outstanding Charges shall remain due and payable by the Customer to RE-Solution in accordance with the terms of this Agreement.
21.6 In the event that, upon termination of the Agreement pursuant to clauses 20.1.1 or 20.1.2, the Services Term of any Order(s) has still not expired, RE-Solution may at its election either (i) extend the duration of the Agreement until the end of the relevant Services Term or Services Term Renewal Period (as applicable) of the relevant Order(s) or (ii) also terminate the relevant Orders.
21.7 In the event that, upon termination of the Agreement pursuant to clauses 20.1.3 or 20.1.4, the Services Term of any Order(s) has still not expired, the relevant Orders shall automatically terminate.
22.1 Each Party hereby undertakes to the other Party to:
22.1.1 keep confidential all Confidential Information that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement;
22.1.2 not without the other’s written consent disclose any Confidential Information in whole or in part of any other person save those of its employees agents and sub-contractors involved in the provision or receipt of the Services and who have a need to know the same; and
22.1.3 use the Confidential Information solely in connection with the provision or receipt of the Services and not for its own benefit or the benefit of any third party.
22.2 The provisions of clause 22.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
22.2.1 Trivial or obvious;
22.2.2 Already in the other Party’s possession on the date of its disclosure;
22.2.3 In the public domain other than as a result of a breach of this clause; or
22.2.4 Independently developed by the other Party without reference to the Confidential Information.
22.3 For the purposes of RE-Solution’s undertaking under clause 22.1 above the Confidential Information shall be deemed to include all Data and Personal Data of the Customer on the System and under the care and control of RE-Solution.
22.4 Each Party hereby undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of the Confidential Information and the provisions of this clause 22 and without limitation to the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 22.
22.5 In the event of any inconsistency between this clause 22 and any valid non-disclosure agreement between the Parties, the provisions of this clause 22 shall prevail to the extent of any such inconsistencies.
23.1 Neither Party during the term of this Agreement and for a period of six (6) months after expiry or termination (howsoever caused) shall solicit the other Party’s staff that have been employed or engaged in the provision of the Services or the performance of this Agreement. For the purposes of this clause “solicit” means the soliciting of such person with a view to engaging such person as an employee, director, sub-contractor or independent contractor.
23.2 In the event that either Party is in breach of clause 23.1 above then the Party in breach shall pay to the other by way of liquidated damages an amount equal to fifty percent (50%) of the gross annual salary (as at the time of the breach) of the person so employed or engaged. This provision shall be without prejudice to either Party’s ability to seek injunctive relief.
24 FORCE MAJEURE
24.1 Neither Party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fire, strikes (of its own or other employees) insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority or acts of god (an “Event of Force Majeure”).
24.2 Each of the Parties shall provide notice to the other Party as soon as reasonably practicable upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure and the estimated duration and impact.
24.3 If a default due to an Event of Force Majeure shall continue for more than four (4) weeks then the Party not in default shall be entitled to terminate this Agreement immediately upon written notice to the other Party. Neither Party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure pursuant to this clause 24.3.
The waiver by either Party of a breach or default of any of the provisions of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within twelve (12) hours) to the address or to the facsimile number of the other Party set out in this Agreement (or such other address or numbers as may have been notified) and any such notice or document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of forty eight (48) hours after posting (if sent by facsimile transmission) upon expiration of twelve (12) hours after dispatch.
27 INVALIDITY AND SEVERABILITY
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
28 ENTIRE AGREEMENT
RE-Solution shall not be liable to the Customer for loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of this Agreement other than representations incorporated in this Agreement.
Neither Party shall be entitled to assign this Agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other Party (not to be unreasonably withheld or delayed).
30.1 Save insofar as otherwise expressly provided all amounts stated in this Agreement are expressed exclusive of any applicable value added, sales, use, excise, customs duties or other taxes, fees or surcharges relating to the provision of the Services, which shall be paid by the Customer in addition to the Charges due to RE-Solution.
30.2 In the event that payment of any of the Charges is subject to withholding tax, levy or similar payment obligations on sums due to RE-Solution, such amounts shall be paid by the Customer in addition to the Charges due to RE-Solution.
Headings to clauses in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
RE-Solution shall be entitled to sub-contract the whole or any part of its obligations hereunder without the prior written consent of the Customer but without relieving RE-Solution from any of its obligations hereunder.
33 THIRD PARTY RIGHTS
This Agreement does not, by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise, confers any rights or benefits on any person or class of person existing now or in the future, who is not a Party to this Agreement.
34 EXPORT CONTROL
The Parties acknowledge that products, software, and technical information (including, but not limited to, the Services, technical assistance and training) provided under this Contract may be subject to export laws and regulations of the UK, USA and other countries, and any use or transfer of the RE-Solution Provided Products, software, and technical information must be in compliance with all applicable regulations. The Parties will not use, distribute, transfer, or transmit the RE-Solution Provided Products, software, or technical information (even if incorporated into other products) except in compliance with all applicable export regulations. If requested by either Party, the other Party also agrees to sign written assurances and other export-related documents as may be required to comply with all applicable export regulations.
35.1 The parties will attempt in good faith to resolve any dispute arising out of or in relation to this Agreement promptly.
35.2 Any dispute between the Parties arising out of or relating to this Agreement shall be in the first instance referred by either Party to the Representatives.
35.3 If any dispute cannot be resolved by the Representatives within a maximum of five (5) working days (or longer period agreed between them) after it has been referred under Clause 35.2, that dispute shall be referred to the [Managing Director] of RE-Solution and the [CEO] of the Customer for resolution.
35.4 If the dispute cannot be resolved by the individuals specified in clause 35.3 within a maximum of five (5) working days (or longer period agreed between them) after it has been referred under clause 35.3 then either Party may refer the dispute to the English courts.
35.5 The Parties may enter into structured negotiations with the assistance of a mutual adviser appointed by the Centre for Dispute Resolution. The programme and structure for any negotiations shall be as agreed between the Parties. If the Parties fail to settle the dispute within a further thirty (30) days or either Party refuses to enter into structured negotiations then the dispute shall be determined by the English courts and the parties submit to the exclusive jurisdiction of those courts for that purpose.
35.6 Save as expressly permitted herein, the Parties shall fulfil their respective obligations under this Agreement insofar as is possible regardless of any outstanding dispute regarding the functionality or performance of the Services (without prejudice to the rights and obligations of either Party).
This Agreement shall be governed by and construed in accordance with English law.